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Land Grab

The Supreme Court heard arguments Tuesday over an eminent domain case in New London, Conn. Homeowners are up in arms over a private developer's plan to seize their land for a development project that the local government says will benefit the community.

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    The case before the Supreme Court today involved the town of New London, Connecticut, which, under the law of eminent domain, has been seizing homes in an economically depressed riverfront area for hotel and office development. But a small group of homeowners have refused to move, Susette Kelo among them.


    It's on the water, and I'm just a nurse; I really can't afford to buy another house on the water.


    The remaining residents argue there should be a limit to a town's right to seize property, even with just compensation. Michael Cristofaro's parents have lived in their home for 35 years.


    I don't think any municipality should have a wildcard to say, "Hey, we're going to use eminent domain; if you don't want to sell, that's okay, we're going to take it anyway."


    But outside the U.S. Supreme Court today, Edward O'Connell, representing the New London Development Corporation, argued many cities would die without the law of eminent domain.


    Our cities have become starved for tax revenues. Instead of knocking down another forest or tearing down an open space, we feel it's important to get economic development back in the cities where it belongs.


    Last year, the Connecticut State Supreme Court upheld the city's right to seize the New London homes. Today the U.S. Supreme Court heard the residents' appeal.


    And we're joined now by NewsHour regular Jan Crawford Greenburg of the Chicago Tribune.

    And Jan, how did this case make it from a waterfront development in New London to the high court?


    Well, as you said, it came about in 1998 when New London approved this redevelopment plan for 90 acres of land next to this $300 million new research facility. It saw it as a chance to create a new development and revitalize a struggling town. It wanted to build an office building, and a hotel and new housing.

    So it created a development corporation to negotiate with the landowners to buy the parcels, and it gave this corporation the right to condemn the land of those who did not want to sell. But several homeowners who we just saw fought back and challenged the development corporation's right to condemn their property. They took that all the way up to the Connecticut Supreme Court, where they lost.

    They went to the Supreme Court of the United States, which heard arguments in their case today over whether or not the city of New London, like cities across the country, have the right to condemn people's property for these kind of private redevelopment projects, in order to expand the city's tax base or create new jobs. That's the issue.


    And what were the main points in the homeowners' argument?


    A lawyer for the homeowners, a senior attorney at the public interest group Institute for Justice, which has really led the fight against these eminent domain cases, he argued that the government had gone too far here, just as governments have across the country.

    And that you could not condemn property of these homeowners solely for this kind of private economic redevelopment. We need more of a public use. The Constitution, he said, requires more of a public use.

    For example, the government could condemn property for roads or hospitals or fire stations, railroad right of ways. Those are the kind of public uses that the Constitution and the Constitution's Fifth Amendment talks about when it gave governments the authority to take property with compensation. That's the public use the Constitution is talking about.

    This, he argued, is not public use, and so New London should not be able to go in and get these homeowners to give up their land. He said any time you have a home or a corner office, a Costco or shopping mall is always going to produce more tax revenue. So if the city wins in this case, the government will be able to do anything.


    So how did the city of New London respond to that line of attack?


    Well, the city of New London argues that the Connecticut Supreme Court was right. This is considered a public use, because it will produce a public benefit, it will expand the tax base, it will revitalize their community, it will create more jobs.

    So they argued that this is completely a public use, and it's well within the Constitution's Fifth Amendment. So they say that they have the authority to go in here and condemn this property, pay the fair price and put up their development.

    And the lawyer for the city of New London argued today that if the government loses in this case, it will make it so much harder for governments to have other kind of redevelopment projects in the future, because now homeowners are willing to sell voluntarily because they know there's a stick at the end of the line, they know that ultimately the government could go in and condemn their property.

    Without that, he said it would be very, very difficult for governments to mount these kind of redevelopment projects, whether they're for a new automobile manufacturing plant or a speedway or even a baseball stadium.


    And what did the Justices find interesting, or what did they start to pick away at in their questions?


    This was a hard case to read. The Justices seemed very divided. I mean, after all, it's two very compelling interests: Pitting the rights against property owners against the efforts of these government officials to revitalize communities that may be depressed or struggling.

    Justices Ruth Bader Ginsburg and David Souter really pressed a lawyer for the homeowners most aggressively, and suggested through their questions that they are very sympathetic with the city's efforts to redevelop this property.

    Justice Ginsburg made the point very forcefully that the city of New London is trying to revitalize its community, that that in fact could be seen as having a public use, a public purpose. Justice Souter also suggested that he agreed with those efforts by the city of New London, because "how else do you do it," he said. And at the end of the day, there's a public benefit.

    On the flip side, on the other end of the scale was Justice Scalia, who very forcefully pressed a lawyer for the city of New London and suggested quite clearly through his questions that he sides with the homeowners.

    He spoke in very vivid terms about how some of these homeowners have lived there for so many years, the one woman who was actually born in one of these houses in 1918, and that it's not about money. It's not about giving them money for their homes. They don't want to move from their homes.

    And it's about principle, and should they have to give up their home for a private redevelopment project, not a hospital or a school or anything like that? He suggested that he saw the answer was clearly no. In the middle we had Justice O'Connor and Justice Kennedy, as they often are, hard to read, questioning lawyers on both sides of this case, and very difficult to predict how they will come out.

    And as I said, this was a difficult argument to gauge because the chief justice was absent from the bench today, as was Justice John Paul Stevens.


    And Chief Justice Rehnquist, long known as someone with a real interest in property rights law.


    That's exactly right. So we were without the benefit of the Chief's views and Justice Stevens' views, who we think could be on the other side of this issue.

    As you know, the Chief Justice is suffering from thyroid cancer. He will not be on the bench the rest of this week or next week he has announced. He is working, he is coming into court, but because of his tracheotomy, he feels he can't be on the bench for the two hours of argument that the court sits in the morning. But he will participate by reading the transcripts or listening to the arguments.

    Justice Stevens, who splits his time between Washington and Florida when the court is not in session, actually missed his flight yesterday, Justice O'Connor announced from the bench this morning. But he also will read the transcripts and participate in the decision of this case. But it made the argument difficult to read, and it had a little different flow because the chief and Justice Stevens are often asking questions with different points of view, of course.


    Property rights cases and so-called "takings law" has been something that's been boiling in the lower courts for a long time. Did you have a lot of friends of the court lining up on both sides of this question?


    Absolutely. This issue has been percolating in the lower courts. The Institute for Justice, for example, has really spearheaded the fight here, and scholars have been writing about this for many, many years. And of course we had a huge lineup of briefs on both sides.

    As the lawyer for the homeowners today pointed out his briefs on his side argue that the NAACP, AARP and other groups argue that these cases are important because it's the poor, minorities, the elderly, who are often in these neighborhoods that are displaced by redevelopment. So they're all on board.

    On the other side, we have a large number of briefs from cities and states, state legislatures, arguing that these kind of projects are important for the residents of their city to get these kind of services, to provide these kind of tax revenues so that they can continue providing services to their residents. Very different issues and concerns, but very powerfully argued.


    And quickly, Jan, the court announced today it's going hear a case involving the Oregon right to die law?


    Yes, that's right. The court announced that it will take up this very controversial issue involving an Oregon law that gives people the right to die. When they're terminally ill, they can request a lethal dose of medication.

    The Justice Department stepped in, challenging doctors' rights to give these kind of lethal doses saying that violated federal drug laws. The Ninth Circuit Appeals Court ruled against the administration.

    The court has agreed to decide that issue whether the federal government can step in and prohibit these doctors in Oregon for assisting the terminally ill in taking their life. This case will be argued next term, starting in October.


    Jan Crawford Greenburg, thanks for being with us.


    You're welcome.